April 10, 2013
Continuing Jurisdiction

by Justice Paul E. Pfeifer

On May 30, 2008, Timothy Knapp was working a lathe machine for Ferry Industries, Inc., when it ejected a metal part that struck his right forearm. After the accident, Knapp was examined twice by Dr. Steven Rodgers – once on September 19 and again on September 26. Based on Dr. Rodgers’s medical examinations, Knapp filed a workers’ compensation claim for temporary total compensation (TTC).

Dr. Rodgers had identified the conditions of right-forearm abrasion, right-forearm contusion, right-shoulder strain, and right-rotator-cuff strain. On the appropriate form, Dr. Rodgers certified Knapp as being unable to return to work until October 16, 2008. For the condition that prevented Knapp’s return to work, Dr. Rodgers listed the code for a forearm contusion, and indicated that the injury had not attained maximum medical improvement (“MMI”).

On five separate occasions over the next five months Dr. Rodgers extended his certification of TTC. In each instance, he postponed the estimated return-to-work date by a month, so that March 25, 2009, was the final return-to-work date. On each of the forms, Dr. Rodgers marked a box to indicate that the right-forearm contusion had not reached MMI.

Following a December 2008 hearing, the Industrial Commission of Ohio – which handles such matters – issued an order of TTC beginning September 22, 2008, based upon the forms from Dr. Rodgers and Knapp’s treatment records. The decision allowed TTC based on “right-forearm contusion.”

In February 2009, another doctor – Dr. Steven A. Cremer – performed an independent medical examination and opined that Knapp had reached MMI for the contusion. The Bureau of Workers’ Compensation forwarded Dr. Cremer’s letter to Dr. Rodgers with the request that Rodgers state whether MMI had been reached, and, if so, when.

On March 6, 2009, Dr. Rodgers responded with a handwritten note that the contusion had reached MMI, but that other conditions had not. Dr. Rodgers then stated that the contusion had reached MMI prior to Knapp’s first visit – on September 9, 2008.

Because the other conditions had been disallowed in parallel proceedings, Dr. Rodgers’s note concerning the contusion having reached MMI was the only relevant factor in Knapp’s entitlement to benefits.

The Bureau requested that the Industrial Commission terminate Knapp’s TTC on the basis of Dr. Cremer’s opinion.  Following a hearing, the Commission ordered that TTC be terminated as of March 6, the date of Dr. Rodgers’s note.

Two months later, Ferry Industries filed a motion asking the Commission to exercise continuing jurisdiction to vacate the entire TTC award, which began in September 2008. The Commission granted relief by vacating the earlier award of TTC and declaring an overpayment of over $15,000.

In response, Knapp filed a complaint in the court of appeals. The court of appeals ruled in favor of Knapp on the primary ground that Dr. Rodgers had had “no authority to render his March 6, 2009 opinion that Knapp had reached MMI at some point prior to the initial examination date,” because no evidence established that he had reviewed any relevant medical evidence generated prior to his initial examination of Knapp.

As a result, the March 6 “repudiation” could not be relied on by the Commission to support the exercise of continuing jurisdiction. After that decision, the case came before us – the Supreme Court of Ohio.

Ohio law states that the Industrial Commission may exercise continuing jurisdiction to revisit an earlier allowance of a disability claim. But our court has limited the Commission’s continuing jurisdiction to certain situations. One of those situations for the exercise of continuing jurisdiction is when there is “new and changed circumstances.”

The Commission regarded Dr. Rodgers’s March 6 note as constituting “new and changed circumstances.” But the court of appeals concluded that Dr. Rodgers’s March 6 note was unreliable, inasmuch as the note offered an opinion that the injury had reached MMI prior to Rodgers’s first examination of Knapp. The court held that a “doctor cannot offer an opinion on a claimant’s extent of disability for a period that precedes the doctor’s examination of the claimant,” unless certain safeguards are observed.

In a case from 1997, our court articulated the straightforward logic behind this principle: a condition “can change with time, and simply because a claimant was not temporarily totally disabled at one point does not mean that the claimant could not be so disabled later.”

Thus, the court of appeals concluded that the Commission could not rely on the March 6 handwritten note from Dr. Rodgers to support the exercise of continuing jurisdiction.

By a seven-to-zero vote, we agreed. On six occasions Dr. Rodgers certified to the Bureau that a right-forearm contusion prevented Knapp from working. Then, puzzlingly, Dr. Rodgers changed his diagnosis, stating in the March 6 note that the contusion actually had reached MMI before he first examined Knapp and that it was not the contusion, but other aspects of Knapp’s injury, that rendered him incapable of work. There can be no continuing jurisdiction under circumstances like these.

First, there was no “new and changed circumstances.” Second, continuing jurisdiction is not appropriate in cases like this, when the claimed new evidence was readily discoverable at the time of the award. We reserve continuing jurisdiction, with its potential for destabilizing Commission determinations, for situations in which circumstances truly have changed since the award.

Our focus was on whether the evidence is in fact new at the time of the “new and changed circumstances” claim. Dr. Rodgers issued a new opinion apparently without any further examination of Knapp or review of his file, so his March 6 note related to absolutely no new evidence or information.

Finally, unreliable information such as equivocal evidence should not give rise to continuing jurisdiction, with its ability to unravel settled determinations for injured workers. It’s difficult to imagine evidence more equivocal than a doctor’s handwritten note that contradicts, without explanation, his six prior certifications to the Commission.

We therefore concluded that the Commission abused its discretion in exercising continuing jurisdiction over this case. Accordingly, we affirmed the judgment of the court of appeals.

EDITOR'S NOTE: The case referred to is State ex rel. Knapp v. Indus. Comm., 134 Ohio St.3d 134, 2012-Ohio-5379. Case No. 2011-0672. Decided November 27, 2012. Opinion Per Curiam.